Citation Nr: 1017336
Decision Date: 05/11/10 Archive Date: 05/26/10
DOCKET NO. 07-11 404 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUE
Entitlement to an increased rating for mitral stenosis,
currently rated as 30 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Shana Z. Siesser, Associate Counsel
INTRODUCTION
The Veteran served on active duty from June 1975 through June
1999.
This matter is before the Board of Veterans' Appeals (Board)
on appeal from an October 2006 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Columbia, South Carolina.
The Veteran was scheduled for a Travel Board Hearing in
August 2008, however he failed to appear. Under the
applicable regulation, if a Veteran fails to appear for a
scheduled hearing and a request for postponement has not been
received and granted, the case will be processed as though
the request for a hearing had been withdrawn. 38 C.F.R. §
20.702 (d) (2009). Accordingly, this Veteran's request for a
hearing is considered withdrawn.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the Veteran
if further action is required.
REMAND
Historically, the RO granted service connection for a heart
disorder in an October 1999 rating decision and assigned a
noncompensable evaluation. A March 2001 rating decision
increased his disability rating to 30 percent. The Veteran
contends the current 30 percent rating does not accurately
reflect the severity of his disability. The Board presently
remands this appeal to enable the RO to ascertain the
severity of the service-connected disorder, and to clarify
the RO's findings in accordance with the applicable
provisions of VA's Schedule for Rating Disabilities
(Schedule). Massey v. Brown, 7 Vet. App. 204 (1994) (holding
in part that in schedular rating claims, VA may only consider
the factors as enumerated in the Schedule).
The Veteran, through his representative, contends that the
Veteran's case is not ripe for appellate review, as the most
recent VA examination took place in August 2006. The Veteran
is contending that his symptoms have increased in severity
since the time of his last VA examination and therefore, he
requires a new examination to determine his current rating.
The mere passage of time, alone, is not sufficient to trigger
a remand for another examination. See Palczewski v.
Nicholson, 21 Vet. App. 174 (2007). However, the Veteran has
claimed that his condition has worsened since the time of his
last VA examination. The Veteran is competent to report a
worsening of symptoms. Proscelle v. Derwinski, 2 Vet. App.
629 (1992) (holding that, in general, for the need for a VA
examination to arise, a claimant would only need submit his
competent testimony that symptoms, reasonably construed as
related to the service-connected disability, have increased
in severity since the last evaluation.).
In light of the passage of time since the last examination,
and because the Veteran is competent to report a worsening of
the service-connected disorder, a new examination is in
order.
Accordingly, the case is REMANDED for the following action:
1. Ascertain whether the Veteran has
received any VA, non-VA, or other medical
treatment for his heart disorder that is
not evidenced by the current record. The
Veteran should be provided with the
necessary authorizations for the release
of any treatment records not currently on
file. Any additional treatment records
not currently of record should be
obtained and associated with the claims
folder.
2. After any additional records have
been associated with the file, schedule
the Veteran a cardiovascular examination
to determine the current symptoms and
severity of the service-connected
valvular heart disease. The following
considerations will govern the
examination:
(A) The claims folder and a copy of
this remand will be reviewed by the
examiner in conjunction with this
examination, and the examiner must
acknowledge such receipt and review
in any report generated as a result
of this examination.
(B) The examiner(s) must state the
medical basis for any opinion
expressed. If the examiner is
unable to state an opinion without
a resort to speculation, he or she
should so state and must explain
why he or she cannot provide an
opinion without resorting to mere
speculation.
(C) All tests and studies deemed
necessary by the examiner should be
performed. It is essential that
these include testing to ascertain
the Veteran's workload (in METs).
The examiner should also provide
commentary as to: 1) any evidence
of cardiac hypertrophy or
dilatation on electro-cardiogram,
echocardiogram, or X-ray; 2) any
left ventricular dysfunction (in
percentage terms of ejection
fraction); and 3) the frequency and
duration of any episodes of
congestive heart failure. If any
such findings are determined to be
attributable to a cardiovascular
disorder other than the service-
connected valvular heart disease,
the examiner must so state and also
clarify exactly which findings are
attributable to the service-
connected disorder. All opinions
and conclusions expressed by the
examiner must be supported by a
complete rationale, in a
typewritten report.
3. Then, readujudicate the claim. If
the benefits sought on appeal remain
denied, issue a Supplemental Statement of
the Case and allow an appropriate period
of time for response. Thereafter, return
the case to the Board, if otherwise in
order.
The Veteran has the right to submit additional evidence and
argument on the matter the Board is remanding. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
_________________________________________________
S.C. KREMBS
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2009).